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In the case of P. Pramila and Others vs. State of Karnataka and Another- 2015(4) KLJ. 1 (SC), the Chairman of the Board authorized the Regional Officer, Karwar to initiate criminal action under Section 37 of the Air Act by filing criminal cases in courts against 17 owners of iron ore stack yards. In compliance with the Order of the Chairman the Regional Officer filed complaints before the Judicial Magistrate, First Class-II, Karwar for alleged violations of certain norms prescribed by the Dy. Commissioner under Section 22 of the Air Act.

A number of similar criminal petitions, filed by the appellants and others, were sought to be disposed of by the High Court of Karnataka, Circuit Bench of Dharwad by a common Order dated 7-1-2009.

This Order was challenged by the Appellants before the Hon'ble Supreme Court. After hearing the submissions of the Learned Counsel of the Respondents the Learned Counsel for the Appellants invited the attention of the Court to the fact that cognizance of an offence could be taken only by the Board or an officer authorized by the Board in terms of Section 43 of the Air Act.

Section 43 was the primary basis of the challenge raised before the SC.

The KSPC Board vide notification/resolution dated 29/03/1989 delegated certain powers including filing of criminal cases to the Chairman of the Board.

The Hon'ble Supreme Court said that the Board could delegate the power to file criminal cases to the Chairman, because Section 43(1) of the Air Act authorized the Board to do so. In that view of the matter, either the Board or the Chairman of the Board could have filed the complaints in terms of the mandate contained in S 43(1) of the Air Act. The power to file the complaint could not be exercised by any other authority or officer. Under the principle of 'delegatus non potest delegate', the delegate (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law.

The SC further observed that 'the officer authorized in this behalf' (the Chairman) was not authorized by the provisions of S43 of the Air Act, or by any other provision thereof, to further delegate, the authority to file the complaints. The Chairman of the Board, therefore, had no authority to delegate the power to file complaints, to any other authority, for making cognizance of offences under the Air Act. Accordingly, the Regional Officer had no jurisdiction to prefer such complaints.

Accordingly, the Hon'ble SC viewed that the complaints made by the Regional Officer are liable to be set aside, on the instant technical ground itself, and ordered accordingly. Further, the SC directed the Board (or the Chairman of the Board) to reinitiate the above proceedings in consonance with S 43(1) of the Air Act within a stipulated time of two months.

Therefore, in view of this Judgement of the Hon'ble Supreme Court, I am of the opinion that 'unless there is a mandate in the provisions of the applicable statute for further delegation of power to file complaints against offenders of the statute, the delegate cannot further delegate.

The author can also be reached at drgubbilegal@gmail.com

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